Glover v. State

• Citation: 105 S.W.2d 82,194 Ark. 66
• Decision Date: 17 May 1937
• Docket Number: Crim. 4035
• Parties: GLOVER v. STATE
• Court: Arkansas Supreme Court

105 S.W.2d 82

194 Ark. 66

GLOVER v. STATE

Crim. 4035

Supreme Court of Arkansas

May 17, 1937

Appeal from Pulaski Circuit Court, First Division; Abner McGehee Judge; affirmed.

Affirmed.

E. W Martin, for appellant.

Jack Holt, Attorney General, and John P. Streepey, Assistant, for appellee.

OPINION

GRIFFIN SMITH, C. J.

Appellant was tried in the Little Rock municipal court and fined $ 25 and cost, charged with having violated subdivision "f" of § 1 of act 81 of 1935. He appealed to the circuit court and when tried by a jury was found guilty and fined $ 100, and has appealed to this court.

As grounds for reversal it is contended (1) that the court erred in admitting certain testimony; (2) that there should have been a directed verdict; (3) that the verdict and judgment are violative of art. 14, § 1, of the Constitution of the United States, and (4) that the appellant was prejudiced by an instruction, given orally.

Act 81 is entitled, "An act for the protection of manufacturers and distributors of liquid fuels, lubricating oils, greases, and similar products." That part of the act invoked by the state provides that "any person who shall aid or assist any other person in * * * depositing or delivering into any tank, receptacle, or other container, any liquid fuels, lubricating oils, greases or like products, other than those intended to be stored therein and distributed therefrom as indicated by the name of the manufacturer or distributor or the trade-mark, trade name, or distinguishing mark, of the product displayed on the container itself, or on the pump, or other distributing device used in connection therewith, or shall by any other means aid or assist another in the violation of any of the provisions of this act, is guilty of a misdemeanor, and upon conviction for a first offense shall be punishable by a fine of not more than $ 200, or by imprisonment for not more than thirty days, or both, and for a second or subsequent offense, by a fine of not less than $ 200 nor more than $ 500, or by imprisonment for not more than one year, or by both such fine and imprisonment."

Section 2 of the act construes "person" to include every natural person, firm, copartnership, association or corporation. There is this further provision: "If any firm, copartnership, association or corporation shall commit a misdemeanor according to the provisions of this act, every director, officer, agent, employee or member participating in, aiding, or authorizing the acts constituting such misdemeanor shall be guilty of having committed a misdemeanor hereunder and shall be subject to the punishment above provided for."

Appellant is engaged in retailing and wholesaling gasoline and oil products, and operates as Glover Oil Company, on the Arch Street Pike, just out of Little Rock.

R. D. Whitworth and his wife operated a store and filling station on highway 65. At the time the illegal sales are alleged to have been made, the filling station was equipped with pumps and tanks belonging to the Sinclair Oil Company, and the name of the distributor or manufacturer (Sinclair Oil Company) was on the equipment.

Whitworth testified that his station was "a regular Sinclair station." Specifically, the state charged that appellant, through one of his drivers, made deliveries of Glover products to the Whitworth-Sinclair tanks.

The transactions complained of occurred in November or December, 1935. In answer to a question, "Did the truck of the Glover Oil Company make delivery of fuel into your tanks during the months of November and December last year?" Whitworth replied: "Yes, sir, by me flagging. I flagged them on the highway and stopped them. During the six months from July to December 31, I imagine the Glover Oil Company truck stopped about ten times and delivered white gasoline, commonly known as clear, third-grade gasoline. There would be no 'set' driver. I paid cash and did not take receipts, and did not keep books nor sign delivery tickets. I was not getting good service from the Sinclair Company, and decided to go with Mr. Glover. I asked if he would be interested in giving me a station, and he said that if I wanted to make a change, he would. I did not say anything to him about having sold Glover products while operating a Sinclair station." Asked if, while operating the Sinclair station, he had ever telephoned Mr. Glover for gasoline, the witness replied: "I called the Glover Oil Company and asked them to send out fifty gallons of gasoline. It was delivered by a driver, and I think his name was Taber. That was in December, 1935, I think. I placed a telephone call with the cashier or bookkeeper, or someone at the Glover Oil Company. It was delivered in an hour, or an hour and a quarter."

The witness said that Mr. Glover, personally, did not know of the orders or deliveries.

Mrs Whitworth, when asked if she bought gasoline from the Glover Company, replied, "Sure did! It was delivered by the first truck I flagged, but I did not telephone in any orders. On one occasion I sent a message to the company that I wanted gasoline, and in response to the message a Glover Oil Company truck came out with fifty gallons, for which I paid cash. I do not know what driver made the delivery. It was put in the 'clear' pump. This pump had a Sinclair 'globe' on it. It was clear gasoline, but when I delivered it to customers it was red. I colored it to attract...